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March 31, 2004

I guess I must be seriously out of the American mainstream when it comes to music, because I was mostly confounded by the results of last night's voting. I thought that the bottom three, based on performance, would have been Camille, John S., and then maybe Amy. Amy is a very good singer, actually, but her performance last night was just safe, and for whatever reason, she didn't have a big fan base (having already been in the bottom 3 before).

America, in its collective wisdom, made the bottom three Amy, Latoya, and Jennifer. Latoya?!? The one that Simon was ready to crown as the American Idol at the end of the semifinals?

And I thought Jennifer Hudson did a good job last night.

Meanwhile, Camille, who was so terrible I couldn't even understand what she was singing, was deemed to be no worse than the fourth worst of the ten?!? About the only thing I can think of is that viewers mixed up Camille with Jasmine, who's also from Hawaii. . . .

I think this bodes well for John S., who managed to survive a terrible performance. He's got a lot of pull with some fans. Speaking of John S., on the results show, Ryan Seacrest had it down to John S. and Latoya, one of whom was going to be in the bottom three. My wife thought this was pretty ridiculous, as there was no doubt as to who it would be. And then Ryan announced that Latoya was in the bottom three. Even John S. looked shocked.

Now I have no idea who is likely to win. Maybe George, who while not outstanding, has been consistently good and who has an infectious and sincere smile. . . . To think he wasn't even among the original 32 semi-finalists.

I think what happens early on, when there are a lot of contestants, is that voters concentrate on helping people they like who they think might be in danger. They assume the really best people, like LaToya are getting votes from someone else. That's a real problem. Maybe each judge ought to have the power to bestow immunity on one contestant at this phase. But no, it makes the show exciting when the wrong people are voted into the bottom three. What fun it was for millions of people to watch the closeups of John Stevens, a sweet teenage kid, and look for a sign of a tear and impute thoughts to him ("I am so much worse then LaToya! The American people are wrongly favoring me and missing the true talent!").

UPDATE 2 (4/1): Oh yeah, I probably should have mentioned that Amy Adams was the one who was booted off the show.

Up to now, I haven't blogged about former counterterrorism guru Richard Clarke's devastating attacks on the Bush Administration. The rest of the blogosphere has done a good job either supporting or attacking Clarke, and I didn't have anything to add. However, some local readers have asked me what I think, so here are some quick thoughts:

1) I think the idea that we should have attacked Afghanistan prior to Sept. 11, 2001 to have broken up the Taliban-Al Qaeda alliance, while perhaps correct in retrospect, would never have passed muster with the international community. Even after 9/11, there were people (including ones I know and respect) who thought attacking Afghanistan was wrong; how in the world would we have persuaded the world that -- absent 9/11 -- such a preemptive attack was justified?

After all, the idea that terrorists might hijack a plane and crash it into a building was hardly unknown; some terrorists had tried to crash a plane into the Eiffel Tower in 1994.

So if, as has been reported, Clarke believes we should have attacked Afghanistan preemptively, his judgment might be called into question a bit. Of course, I don't mean that this belief by itself warrants discrediting everything else he has to say; but it is something that should be taken into account.

2) The idea that National Security Adviser Condi Rice had never heard of Al Qaeda before 9/11 seems to me to be a seriously incredible assertion. I dare say that it is so implausible that there needs to be some pretty significant corroborating evidence, especially since Ms. Rice had spoken publicly about Osama bin Laden before 9/11.

Even if it's true that Ms. Rice had never heard of Al Qaeda before, isn't that also the fault of President Clinton's NSA (Sandy Berger)? After all, when you are giving up a position to someone else, don't you have a debriefing with that person?

That Clarke would make such an assertion -- which I should note is theoretically true (I'd just want to see lots of other people corroborating) -- calls into question his ability to separate what is clearly anger directed at Ms. Rice and others in the Administration from objective evaluations of the Administration's perceived failures.

* * *

In sum, I'm not anywhere close to ready to join the camp that believes that Clarke is lying and should be prosecuted for perjury. A lot of what he has said has the ring of truth and is quite disturbing. However, at the same time, I think there are some reasons to remain a bit skeptical of what he has to say until we see some more corroboration. I also think that to the extent he is credible, his judgments need to be tempered and evaluated based on the pre-9/11 mindset. Specifically, just because it was possible to imagine that terrorists would use planes as missiles, there's a difference between imagining it (or reading about it in a book) versus seeing the actual horror of it, as we were forced to do on Sept. 11.

UPDATE (3/31): I caught parts of Chris Matthews' interview of Clarke on "Hardball." Matthews confronted Clarke with a tape of Rice discussing bin Laden pre-9/11, which seemed to suggest that Clarke was wrong about Rice's not knowing about Al Qaeda. Clarke responded, "Listen to what she said. She mentioned bin Laden, not Al Qaeda."

Kind of a lawyerly response, don't you think?

I suppose that it's possible that Condi Rice really did only think that bin Laden was this super-terrorist without an organization like Al Qaeda, but it seems a little hard to believe that one would attribute such concern about bin Laden as an individual, rather than the symbolic head of Al Qaeda.

March 30, 2004

Now that National Security Adviser Condi Rice has agreed to testify before the 9/11 Commission under oath and publicly, I have to wonder what all of the fuss was about. Especially the part about testifying under oath. I suppose it's possible there's some political significance to the oath that the Administration wanted to avoid, but as far as personal liability for Ms. Rice goes, whether her testimony is under oath or not, she would appear to be in jeopardy of prosecution under 18 U.S.C. s 1001 if she were to lie to the Commission. (Yes, the same section 1001 used in part to prosecute Martha Stewart.)

By the way, I think it's silly that the Administration let Ms. Rice testify only after the Commission agreed that it would not set a "precedent":

The commission's Republican chairman, former New Jersey Gov. Thomas Kean, welcomed the decision and said the White House shouldn't be concerned that the testimony would violate the principles of executive privilege or separation of powers.

"We recognize the fact that this is an extraordinary event," Kean said. "This does not set a precedent."

I don't see how Rice's testimony can *avoid* becoming a precedent. Much of the institution of the separation of powers is a set of informal arrangements between the branches, which continually look to previous practice (as opposed to judicial precedents). Whatever the Administration says, people will remember that Rice testified and the circumstances under which she did so. Saying that this won't be a precedent is a little like the Supreme Court in Bush v. Gore saying that its decision was limited to the specific facts of that case. It's not the sort of statement that induces much confidence in the principled nature of the decision.

Maybe as a political matter, this claim helps the Administration defend its prior intransigence -- i.e., "We just wanted to make sure that future Administrations would not be hobbled because of this instance where we let the NSA testify." But it doesn't strike me as a very good legal argument.

I've followed the Disney-Slesinger lawsuit over the rights to Winnie-the-Pooh on and off over the years. The gist of the lawsuit is that Slesinger's estate, which bought the rights to Pooh back in 1930 and later licensed them to Disney, claims that the company failed to pay millions of dollars in royalties over the years stemming from sales of new media (videotape, CDs, etc.) that were not in existence at the time the license was agreed upon.

The plaintiffs' "willingness to tamper with, and even corrupt, the litigation process constitutes a substantial threat to the integrity of the judicial process," the judge wrote. "The court finds that [the plaintiffs'] misconduct was willful, tactical, egregious and inexcusable."

Back when I was practicing in L.A., it seemed like half the major law firms in the city had some connection to this case. A medium sized entertainment law firm, then known as Troop Meisenger, handled the bulk of the litigation for Disney, but then Lou Meisenger became Disney's chief in-house counsel. Dan Petrocelli (who won the civil lawsuit against O.J. Simpson) of O'Melveny & Myers took over the case (and ultimately won it.) At some point, the L.A. office of N.Y.-based Skadden Arps also worked on the case on behalf of Disney.

This case had it all: not only the plaintiffs' misconduct, but also document destruction by Disney, which resulted in sanctions in 2001 against the company. It appears that it is finally over (though the Slesinger estate is appealing).

[I should disclose that I own a little bit of stock in Disney.]

UPDATE (3/31): Oops, it isn't Slesinger's estate that is the plaintiff, but rather Stephen Slesigner Inc.

One of the reasons I really like Prof. Althouse's blog (apart from her fascination with many of the same TV shows that fascinate me -- "American Idol" and "The Apprentice") is that she exhibits a level-headed non-partisanship. For example, she describes a letter she received from NOW that strikes her as overheated rhetoric:

"George Bush has launched a full-scale assault on women while the war in Iraq continues to provide cover for the damage he is doing to our rights at home." So reads a letter from NOW I received yesterday. Oh, how I detest this kind of rhetoric! I suppose it helps raise money to instill a sense of emergency and to make the other side look aggressively evil.

. . .

The tone of this letter is so overheated and lacking in rationality that if I were not seeing the name of the organization that sent it, I would not believe it was sent by a large, important organization. Clearly, many people who support abortion rights also understand and can respect the position of those who oppose them. I'm completely offended by this characterization of abortion opponents as outrageous extremists who smirk with glee as they exercise ill-gotten power to carry out a dangerous anti-woman agenda.

It's too bad that there aren't more people on both sides of contentious issues who are as thoughtful as Prof. Althouse.

March 29, 2004

I finally got around to watching last night's episode of "The Practice." (We had a cable outage last night, but fortunately, a friend taped it for us.)

I have to say, William Shatner has been terrific as a special guest star. His scene-chewing, over the top hamminess is perfect for this show. His character is a loopy, bizarre freak who keeps repeating his name as if it were a magical mantra. Yet somehow in court, as the partner representing Alan Shore in his wrongful termination suit against the firm, Crain becomes effective.

Meanwhile, Spader continues to impress me. I remember how he played rich punks in movies like "Pretty in Pink" back in the 1980s; he's aged well and now plays Shore as a deeply disturbed, yet sympathetic character. I especially like the interaction between Tara Wilson (Rhona Mitra) and Shore. My concern for the proposed spin-off is that Shore and Wilson will have a "Moonlighting"-esque "will they or won't they?" sexual tension that will distract from the show.

One bit of irony from the episode: in defending the law firm's decision to terminate Shore, Eugene Young (Steve Harris) goes into great detail about all of Shore's ethical and legal lapses -- impersonating an airline executive to settle a case, hiding a murder weapon from the police, stealing opposing counsel's documents, blackmailing adverse parties. . . .

All very bad stuff. And Young probably had a duty to report these various ethical breaches to the state bar. But having not done so, can Young simply breach client confidences by spilling the beans in court? After all, now the opposing parties can sue to undo the settlements or verdicts, clients might complain of malpractice, and so on. Kind of ironic that Young accused Shore of breaching privilege, since that's what Young just did.

No preview for the next episode, since next week is Easter weekend, and ABC is showing "The Ten Commandments." There are only four episodes left, and I wonder if Spader and Mitra will be in them, or if the remaining episodes will focus on closing out the law firm.

I just received today my copy of Randy Barnett's Restoring the Lost Constitution. Thanks to a tip from the Volokh Conspiracy, I saw that the book was available at a nice discount from Laissez Faire Books -- $24.25 instead $32.50. Not only that, there's a 15 percent discount on top of that right now through April 30.

And my copy was signed, to boot.

I heard Barnett give a talk about his book at the AALS conference in Atlanta earlier this year, and his libertarian theory of the Constitution is a very interesting one. Essentially, rather than go through the complicated balancing tests that the Court uses now to test the constitutionality of legislation, which generally consists of coming up with the nature of the classification at issue (whether a fundamental right or a suspect classification or whatever) and then applying a different level of scrutiny depending on that nature, Barnett would ask whether the government has a legitimate justification for infringing one's liberty. (I am vastly oversimplifying here, as I am going off my recollection of the talk, without having read the book yet.) This is largely the approach that the Court adopted in Texas v. Lawrence, in which Barnett wrote an amicus brief.

March 28, 2004

I found this article analyzing why Matt lost last week on Fox's "American Idol." I agree with pretty much all of it (Matt wasn't that good of a singer, he came across like a politician in his video clips, etc.), but one that I disagree with was this:

But his early comment about wanting to make Simon’s head bleed (even though he said it with a smile on his face) undoubtedly turned many people against him.

Matt made that comment right before a preview for the episode of "The Simpsons" in which Simon guest-starred. The preview showed Homer beating Simon up, with Simon insulting Homer's assault. ("You call that a punch?") I would be extremely shocked if the "American Idol" producers hadn't fed Matt the line about wanting to beat Simon up and make him bleed as a lead-in to the "Simpsons" preview.

Of course, I could be wrong. Or I could be right but not everyone noticed the connection. If so, maybe the producers unintentionally torpedoed Matt.

March 27, 2004

Jacques Verges told France-Inter radio he had received a letter from Saddam's family requesting him to defend the former Iraqi leader in court. U.S. officials have said they will bring Saddam to trial for alleged crimes against Iraqi people. But the location of any trial and its format and date have not yet been decided.

The letter from Saddam's family read: "In my capacity as nephew of President Saddam Hussein, I commission you officially by this letter to assure the defense of my uncle," Verges said. He did not name the person who sent the letter.

Verges appears to be something of a celebrity lawyer, having defended Nazis and terrorists in trials in the past. It sounds like he actually is a legit criminal defense lawyer, and so, all joking aside, this is perhaps a welcome offer. I'm not sure what the defense would be, other than a claim of immunity as head of state, but on the other hand, I certainly don't know anything about Iraqi law . . . .